Marriage (3:III) - Revision history

LSLAP: /* C. Common-Law Relationships */

2025-11-10T20:28:53Z

C. Common-Law Relationships

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	Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''[https://canlii.ca/t/g7cp6 C.A.M. v. M.D.Q.]'', 2014 BCPC 110 (CanLII) regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship.		Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''[https://canlii.ca/t/g7cp6 C.A.M. v. M.D.Q.]'', 2014 BCPC 110 (CanLII) regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship.

	See [[Family Law Glossary (3:App A) \| Appendix A: Glossary]] at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.		See '''[[Family Law Glossary (3:App A) \| Appendix A: Glossary]]''' at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.

	Remember that a common-law relationship is '''not''' a legal marriage. Nevertheless, where legal rights and obligations are conferred on common-law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.		Remember that a common-law relationship is '''not''' a legal marriage. Nevertheless, where legal rights and obligations are conferred on common-law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.

LSLAP: /* 6) Residency */

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6) Residency

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	=== 6) Residency ===		=== 6) Residency ===

	The ''[https://canlii.ca/t/52hdt Civil Marriage Act]'', SC 2005, c 33 was passed in ~~2014~~. With this act, marriages performed in Canada between non-Canadian residents will be valid in Canada, regardless of the law in either spouse’s country of residence. Additionally, Canadian courts will be able to grant divorces to non-resident spouses who were married in Canada, and who are unable to get divorced in their own state because that state does not recognize the validity of the marriage.		The ''[https://canlii.ca/t/52hdt Civil Marriage Act]'', SC 2005, c 33 was passed in 2005. With this act, marriages performed in Canada between non-Canadian residents will be valid in Canada, regardless of the law in either spouse’s country of residence. Additionally, Canadian courts will be able to grant divorces to non-resident spouses who were married in Canada, and who are unable to get divorced in their own state because that state does not recognize the validity of the marriage.

	=== 7) Foreign Marriages ===		=== 7) Foreign Marriages ===

LSLAP: /* 2. Legislation: Family Law Act [FLA] */

2025-11-10T19:15:14Z

2. Legislation: Family Law Act [FLA]

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	=== 2. Legislation: Family Law Act [FLA] ===		=== 2. Legislation: Family Law Act [FLA] ===

	The ''FLA'' promotes the enforceability of marriage and cohabitation agreements, and to provides clear guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties regardless of whether a family dispute resolution professional has been consulted and/or the agreement has been filed with a court. Agreements will be binding on a person who is under 19 years of age if they are parents or spouses (Part 2, s 6).		The ''FLA'' promotes the enforceability of marriage and cohabitation agreements, and provides clear guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties regardless of whether a family dispute resolution professional has been consulted and/or the agreement has been filed with a court. Agreements will be binding on a person who is under 19 years of age if they are parents or spouses (Part 2, s 6).

	Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:		Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:

LSLAP: /* 1. General */

2025-11-10T19:13:49Z

1. General

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	Common-law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common-law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (see ''[https://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6429 (BC CA)) for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; (see ''[https://canlii.ca/t/g87vw Matteucci v. Greenberg]'', 2014 BCSC 1434 (CanLII); ''[https://canlii.ca/t/fx5b2 Trudeau v. Panter]'', 2013 BCSC 706 (CanLII)) that merely living together does not mean a relationship is marriage-like.		Common-law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common-law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (see ''[https://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6429 (BC CA)) for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; (see ''[https://canlii.ca/t/g87vw Matteucci v. Greenberg]'', 2014 BCSC 1434 (CanLII); ''[https://canlii.ca/t/fx5b2 Trudeau v. Panter]'', 2013 BCSC 706 (CanLII)) that merely living together does not mean a relationship is marriage-like.

	Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''[https://canlii.ca/t/g7cp6 C.A.M. v. M.D.Q.]'', 2014 BCPC 110 (CanLII)) regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship.		Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''[https://canlii.ca/t/g7cp6 C.A.M. v. M.D.Q.]'', 2014 BCPC 110 (CanLII) regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship.

	See [[Family Law Glossary (3:App A) \| Appendix A: Glossary]] at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.		See [[Family Law Glossary (3:App A) \| Appendix A: Glossary]] at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.

LSLAP at 19:12, 10 November 2025

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	The law recognizes traditional customary marriages of Indigenous people in some circumstances where the marriage meets the criteria of English common law.		The law recognizes traditional customary marriages of Indigenous people in some circumstances where the marriage meets the criteria of English common law.

	== B. Common-Law Relationships ==		== C. Common-Law Relationships ==

	=== 1. General ===		=== 1. General ===
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	A common law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1(1)). Common-law relationships are dealt with as marriages, and as single-family units where there are children.		A common law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1(1)). Common-law relationships are dealt with as marriages, and as single-family units where there are children.

	== C. Marriage and Cohabitation Agreements ==		== D. Marriage and Cohabitation Agreements ==

	=== 1. General ===		=== 1. General ===

LSLAP: /* 2. Legislation: Family Law Act [FLA] */

2025-11-10T16:34:28Z

2. Legislation: Family Law Act [FLA]

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	Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:		Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:

	#Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;		:a) Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
	#One spouse takes improper advantage of another’s vulnerability;		:b) One spouse takes improper advantage of another’s vulnerability;
	#One spouse does not understand the nature or consequences of the agreement; and/or		:c) One spouse does not understand the nature or consequences of the agreement; and/or
	#Other circumstances that would cause, under common law, all or part of the contract to be voidable.		:d) Other circumstances that would cause, under common law, all or part of the contract to be voidable.

	The above concerns are often addressed by having the parties obtain independent legal advice.		The above concerns are often addressed by having the parties obtain independent legal advice.
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	Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:		Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:

	#The length of time that has passed since the agreement was made;		:a) The length of time that has passed since the agreement was made;
	#The intention of the spouses, in making the agreement, to achieve certainty; and/or		:b) The intention of the spouses, in making the agreement, to achieve certainty; and/or
	#The degree to which the spouses relied on the terms of the agreement.		:c) The degree to which the spouses relied on the terms of the agreement.

	The ''FLA'' is drafted to make it difficult for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (see ''[https://canlii.ca/t/g6t11 Thomson v. Young]'', 2014 BCSC 799 (CanLII)).		The ''FLA'' is drafted to make it difficult for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (see ''[https://canlii.ca/t/g6t11 Thomson v. Young]'', 2014 BCSC 799 (CanLII)).

LSLAP: /* 4) Age */

2025-11-10T16:24:44Z

4) Age

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	=== 4) Age ===		=== 4) Age ===

	Both spouses must be over the age of majority (19 in BC; see the [http://canlii.ca/t/5224c ''Age of Majority Act''], RSBC 1996, c7, s 1). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of their parents (see the [https://canlii.ca/t/5643s ''Marriage Act''], RSBC 1996, c 282, s. 28). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s. 29). However, a marriage is not automatically invalid if the requirements of s. 28 and 29 have not been met at the time of marriage (s. 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as spouses for some time).		Both spouses must be over the age of majority (19 in BC; see the [http://canlii.ca/t/5224c ''Age of Majority Act''], RSBC 1996, c7, s 1). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of their parents (see the [https://canlii.ca/t/5643s ''Marriage Act''], RSBC 1996, c 282, s 28). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s 29). However, a marriage is not automatically invalid if the requirements of s 28 and 29 have not been met at the time of marriage (s 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as spouses for some time).

	=== 5) Mental Capacity ===		=== 5) Mental Capacity ===

LSLAP: /* 2. Legislation: Family Law Act [FLA] */

2025-11-10T16:24:13Z

2. Legislation: Family Law Act [FLA]

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	Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:		Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:

	~~:a)~~ Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;		#Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
	~~:b)~~ One spouse takes improper advantage of another’s vulnerability;		#One spouse takes improper advantage of another’s vulnerability;
	~~:c)~~ One spouse does not understand the nature or consequences of the agreement; and/or		#One spouse does not understand the nature or consequences of the agreement; and/or
	~~:d)~~ Other circumstances that would cause, under common law, all or part of the contract to be voidable.		#Other circumstances that would cause, under common law, all or part of the contract to be voidable.

	The above concerns are often addressed by having the parties obtain independent legal advice.		The above concerns are often addressed by having the parties obtain independent legal advice.
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	Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:		Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:

	~~:a)~~ The length of time that has passed since the agreement was made;		#The length of time that has passed since the agreement was made;
	~~:b)~~ The intention of the spouses, in making the agreement, to achieve certainty; and/or		#The intention of the spouses, in making the agreement, to achieve certainty; and/or
	~~:c)~~ The degree to which the spouses relied on the terms of the agreement.		#The degree to which the spouses relied on the terms of the agreement.

	The ''FLA'' is drafted to make it difficult for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (see ''[https://canlii.ca/t/g6t11 Thomson v. Young]'', 2014 BCSC 799 (CanLII)).		The ''FLA'' is drafted to make it difficult for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (see ''[https://canlii.ca/t/g6t11 Thomson v. Young]'', 2014 BCSC 799 (CanLII)).

LSLAP: /* c) Spousal Support */

2025-11-10T16:23:38Z

c) Spousal Support

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	==== c) Spousal Support ====		==== c) Spousal Support ====

	The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the ''FLA'', spousal support agreements that are filed with a Court registry will be treated as an order of the Court (''FLA'', s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the Court finds that the agreement is significantly unfair (see s. 164 of the ''FLA''). See '''[[Spousal and Child Support (3:X) \| Section X: Spousal and Child Support]]'''.		The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the ''FLA'', spousal support agreements that are filed with a Court registry will be treated as an order of the Court (''FLA'', s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the Court finds that the agreement is significantly unfair (see s 164 of the ''FLA''). See '''[[Spousal and Child Support (3:X) \| Section X: Spousal and Child Support]]'''.

	==== d) Void Conditions ====		==== d) Void Conditions ====

LSLAP at 16:23, 10 November 2025

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	{{REVIEWED LSLAP \| date= ~~June 23~~, ~~2024~~}}		{{REVIEWED LSLAP \| date= November 8, 2025}}
	{{LSLAP Manual TOC\|expanded = family}}		{{LSLAP Manual TOC\|expanded = family}}